Still More About The Death Of Aaron Swartz

United States Attorney Carmen Ortiz, who still has political ambitions beyond her current station, and her husband, and some unfortunate media enablers, have finally organized a response to the torrent of criticism she and her office have received in regard to her breaking-a-butterfly-on-a-wheel prosecution of activist Aaron Swartz, whom Ortiz's office tried to throw in prison for the crime of stealing stuff the actual owners eventually said that they didn't care that much about.

More From Esquire

First, her husband, Tom Dolan, tweeted out his incredulity that his wife and her prosecutors were being blamed for Swartz's suicide, and criticized Swartz's parents for their belief that the prosecution was directly tied to their son's death: "Truly incredible that in their own son's obit they blame others for his death and make no mention of the 6-month ­offer."

This argument proved so compelling that Dolan deleted his Twitter account.

Then, last night, Ortiz released her own statement, which said, in part:

"As a parent and a sister, I can only imagine the pain felt by the family and friends of Aaron Swartz, and I want to extend my heartfelt sympathy to everyone who knew and loved this young man. I know that there is little I can say to abate the anger felt by those who believe that this office's prosecution of Mr. Swartz was unwarranted and somehow led to the tragic result of him taking his own life. I must, however, make clear that this office's conduct was appropriate in bringing and handling this case. The career prosecutors handling this matter took on the difficult task of enforcing a law they had taken an oath to uphold, and did so reasonably."

This is, of course, defending yourself with armed banality. Very few people are saying the prosecution itself was "unwarranted." Even Swartz's own lawyers say he was willing to accept probation and a fine. Nobody's accusing the prosecutors of violating their oaths. The problem is that, by the modern standards of how federal prosecutors behave generally, and how Ortiz's office has behaved in particular, she would see their actions as both appropriate and "reasonable." And the glibness with which her husband and her defenders toss off a "mere" six months in federal prison, low-security or not, is a further indication that something is seriously out of whack with the way our prosecutors think these days.

Unfortunately, Joan Vennochi, a usually reasonable columnist at The Boston Globe, has stepped up as a primary defender of Ortiz's conduct in this case. (The Globe's been one of Ortiz's biggest boosters, although the paper's coverage of this incident has been extremely fair-minded.) The column's behind a paywall — Yeah, go figure. — but, through the miracle of home delivery and transcription, we find that Vennochi begins with the six-months-ain't-nothing argument and goes from there.

But there are also questions for Swartz' lawyer, Eliot Peters. Why reject the government's offer of a four to six months prison sentence? That's much less than the 35 years and $1 million fine allowed under the federal law that Swartz was charged with violating. Peters told the Globe that Swartz didn't believe he was a felon; he was acting on the principle that information on the Internet should be free. But defending principle was not his lawyer's job. It was to provide Swartz with the best legal advice, given the charges.

We move from there to an appalling misuse of Martin Luther King's Letter From The Birmingham Jail — Vennochi seems convinced that this was purely an act of civil disobedience and that civil disobedience must needs include jail time — but once we get to the condescension, the piece goes completely off the rails.

An emotion-soaked perspective is understandable from those closest to Swartz. But the widespread revulsion directed at the U.S. Attorney's office is overreach by cyberbullies. Defense lawyers would love to see federal prosecutors back down from other criminal cases.

Lord above, what a crock. I wouldn't have known Aaron Swartz if he'd sat in my lap. I had to have one of my children explain to me what Reddit was the other night. (Yes, I am an idiot. Please proceed.) But I've been around enough courthouses to recognize political ambition in a federal prosecutor when I see it. I've been around enough courthouses to recognize where the real power to bully someone comes from, and it doesn't come from law professors saying mean things about people on the Intertoobz. It comes from the FBI, and a couple dozen federal law-enforcement agencies, and the power to throw people — even for a "mere" six months — into the federal pokey. Every federal prosecution doesn't have to be balls-to-the-wall. You don't have to have known Aaron Swartz to conclude with good reason that the U.S. Attorney had an agenda here beyond simply keeping secure some JSTOR files, or maintaining the integrity of the broom closets at MIT. This is especially true when you examine the bill of particulars put together about Ortiz and her office by media critic Dan Kennedy on his blog the other day. Ortiz, whom Vennochi seems hellbent on protecting from the slings and arrows of cybermeanies, knows the political value of being "tough on crime." I guarantee you, if Aaron Swartz hadn't killed himself, he'd have been in an Ortiz For Governor campaign commercial one day.

At the end of the column, though, Vennochi does get around to allowing that perhaps, maybe, Ortiz and her prosecutors might have gone a little easier, given that the law they were seeking to enforce is dubious even when applied appropriately, which it certainly wasn't here. She then goes on to superbly miss the point.

Massachusetts is one of the high-tech capital of the world. This involved a major network breach at MIT, a major institution. Free information is a nice principle, but right now everyone is trying to bury it behind a paywall. Swartz ran up against the power of money. As smart as he was, he didn't know when to back downand it sounds like his lawyer didn't tell him.

Let's leave aside the sad irony of a journalist accepting as axiomatic the idea that "free information" is simply a "nice principle." Rather, let's take a look around at our new-age banana republic, where "the power of money" decides who gets prosecuted, and how severely, and for what. "The power of money" isn't supposed to mean jack-shit in a courtroom. Every advance in progressive jurisprudence for over a century has at least in part been about lessening the influence of "the power of money" over the judicial process. I'm sorry Carmen Ortiz has had a bad week. I sympathize not at all.